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HOOKER v. COLUMBIA PICTURE INDUSTRIES

December 6, 1982

T.J. HOOKER, PLAINTIFF,
v.
COLUMBIA PICTURES INDUSTRIES, INC., A CORPORATION, SPELLING-GOLDBERG PRODUCTIONS, A PARTNERSHIP OR A CORPORATION, AND AMERICAN BROADCASTING COMPANIES, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Kocoras, District Judge:

MEMORANDUM OPINION

Plaintiff is a professional woodcarver from Woodstock, Illinois. Examining the host of exhibits appended to the affidavit which he has submitted, it appears that while plaintiff does carve other birds, he specializes in ducks. Plaintiff's ducks are of the highest quality. Some of them are described as "exquisite" and sell for a great deal of money. Plaintiff's Affidavit, Exhibits 1, 4. Plaintiff's name is T.J. Hooker. He runs a business by the same name producing ducks and other wooden creatures. Among aficianados of such art, plaintiff and his ducks are "internationally renowned." Id., Exhibit 2 at 3, Exhibit 3. Plaintiff has garnered such wide acclaim by dint of his fine workmanship and his extensive promotion and marketing. Each year, plaintiff sells "many hundreds of thousands of dollars worth of wildlife art identified by his name." Complaint ¶ 10.

The defendants are Columbia Pictures Industries, Inc.; Spelling-Goldberg Productions; and American Broadcasting Companies, Inc. These companies produce and broadcast a television series about a fictional policeman in California. Never having heard of plaintiff or his celebrated ducks, the defendants happened to name their imaginary policeman "T.J. Hooker." Not surprisingly, the series is also entitled "T.J. Hooker." Plaintiff admits that this choice of a name for the character and series "may be a mere coincidence." Plaintiff's Memorandum in Support of Motion for Preliminary Injunction at 7. However, plaintiff thinks that he nevertheless has been wronged, and he brings this action seeking to vindicate his rights. The lawsuit revolves around the use of the name "T.J. Hooker." The central theme in all four counts of plaintiff's complaint is that "T.J. Hooker" is his name and the defendants cannot use it without his permission.

Plaintiff grounds his claims for relief on four theories. The defendants contend that plaintiff has failed to state a claim under any of these theories. Accordingly, they have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). Plaintiff, in turn, has moved for a preliminary injunction under Fed.R.Civ.P. 65, seeking to enjoin the defendants from advertising or broadcasting their show using the name "T.J. Hooker." As might be expected, the defendants vigorously oppose this motion.

A.

Count I of the complaint is based upon the common law tort of appropriation of the plaintiff's name or likeness for the defendants' benefit or advantage. In order to state a claim for relief based on this theory, it is vital that some "appropriation" be alleged. See W. Prosser, Law of Torts § 117 at 804-07 (4th ed. 1971). "Appropriation" in this context means more than the mere coincidental use of a name that happens to be the same as that of the plaintiff. Dean Prosser explained this as follows:

    It is the plaintiff's name as a symbol of his
  identity that is involved here, and not as a mere
  name. Unless there is some tortious use made of it,
  there is no such thing as an exclusive right to the
  use of a name; and any one can be given or assume any
  name he likes. It is only when he makes use of the
  name to pirate the plaintiff's identity for some
  advantage of his own, as by impersonation to obtain
  credit or secret information, or by posing as the
  plaintiff's wife, or providing a father for a child
  on a birth certificate, that he becomes liable. It is
  in this sense that "appropriation" must be
  understood. It is therefore not enough that a name
  which is the same as the plaintiff's is used in a
  novel, or the title of a corporation, unless the
  context or the circumstances indicate that the name
  is that of the plaintiff. . . . Nor is there any
  liability when the plaintiff's character, occupation,
  and the general outline of his career, with many real
  incidents in his life, are used as the basis for a
  figure in a novel who is still clearly a fictional
  one.

Id. at 805-06 (footnotes omitted).

Similarly, the Restatement of Torts makes it clear that it is not the use of the plaintiff's name which constitutes a tort but rather the appropriation of the value of his name and reputation:

  It is not enough that the defendant has adopted for
  himself a name that is the same as that of the
  plaintiff, so long as he does not pass himself off as
  the plaintiff or otherwise seek to obtain for himself
  the values or benefits of the plaintiff's name or
  identity. Unless there is such an appropriation, the
  defendant is free to call himself by any name he
  likes, whether there is only one person or a thousand
  others of the same name. Until the value of the name
  has in some way been appropriated, there is no tort.

Restatement (Second) of Torts § 652C, comment c (1976) (emphasis added).

Examining Count I in light of the foregoing principles, it is apparent that plaintiff has failed to allege a tortious appropriation of his name. Plaintiff does allege that "[d]efendants' . . . use of plaintiff's name appropriates the right of publicity in plaintiff's celebrated name." Complaint ¶ 22. But this broad, conclusory allegation cannot substitute for allegations of facts showing that the defendants used the name "T.J. Hooker" as a means of pirating plaintiff's identity. By his own admission, the commercial value of plaintiff's name is in the field of wildlife art. Complaint ¶¶ 9-12. Hunters, sportsmen, and collectors identify plaintiff's name with fine carvings of ducks and other fowl. There is nothing in the complaint which can be construed as an allegation that the defendants adopted the name "T.J. Hooker" in order to avail themselves of plaintiff's reputation as an extraordinary woodcarver.

Plaintiff admits that the fictional television series at issue here is a "police drama." Complaint ¶ 17. It is difficult to imagine a subject further removed for the life of T.J. Hooker the artisan. The facts and circumstances alleged by plaintiff provide no basis upon which it can be found that the name "T.J. Hooker," as used in the defendants' fictional television series, in any way refers to the real T.J. Hooker.

There being no well-pleaded allegation of appropriation of the value of plaintiff's name, plaintiff has failed to state a claim upon which relief can be granted. Accordingly, ...


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